| For a summary of Guyana’s review at the first cycle please click here. |
21th UPR session
Date of review: 28 January 2015
Date of report adoption: 13 April 2015
Document number: A/HRC/29/16
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SUMMARY SOGIESC issues during Guyana’s 2nd UPR review |
I. SOGIESC issues/recommendations identified by NGOs
Equality and non-discrimination
6. JS1-SASOD-SRI (JS1) stated that much of the violence against LGBT persons was fuelled by socio-cultural norms, and that discriminatory laws reinforced these homophobic and transphobic prejudices.
7. AI reported that at least three individuals were murdered in 2013 in what appears to have been killings motivated by their perceived sexual orientation and/or gender identity and expressed concern at reports of the police refusing to take complaints from the LGBTI community and often verbally abusing them. CHRI recommended inter alia, ensuring that all allegations of hate crimes based on sexual orientation and gender identity were properly investigated and perpetrators held accountable. AI recommended fully and thoroughly investigating all incidents and acts of violence suspected of being motivated by homophobic or transphobic reasons.
8. JS1 affirmed that discriminatory responses from the police, manifested in lack of or inadequate investigations and mostly unsolved cases often lead to injustice and fostered impunity for anti-LGBT hate crimes. JS1 recommended the Government of Guyana inter alia, to investigate, and punish where necessary, discriminatory and abusive behaviour by the uniformed forces.
9. Equal Rights Trust (ERT) asserted it found evidence of discrimination on the basis of sexual orientation and gender identity in employment, education and healthcare, all legitimised by continued criminalisation. JS1 affirmed that LGBT persons suffered discrimination in many sectors. JS1 also affirmed that discriminatory laws contributed to a repressive socio-cultural environment and to a limitation in LGBT people’s access to public, semi-public and private spaces. CHRI stated there is no explicit legislation against discrimination on sexual orientation and gender identity grounds and JS1 recommended the Government of Guyana to amend Article 149 of the Constitution in order to include sexual orientation and gender identity as grounds for discrimination. Justice Institute Guyana (JIG) also recommended amending section 4 of the Prevention of Discrimination Act to include sexual orientation and gender identity as prohibited grounds for discrimination.
10. JS1 stated that LGBT persons oftentimes chose not to express their orientations and identities because they were threatened, discriminated against and victimised, and that transgender persons were expressly forbidden from expressing their gender identity because of Section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act which made crossgender dressing an offence. JS1 stated this norm facilitated arbitrary arrests, police harassment and abuse. CHRI reported that, in September 2013, the Supreme Court partially repealed the controversial section 153 of the 1893 Guyanese Summary Jurisdiction Act on cross-dressing. CHRI reported that the Court ruled that cross-dressing can only be considered a criminal offence if it is done for an “improper purpose”. CHRI also expressed that the failure to define what exactly is meant by “improper purpose”, may be sufficient for arbitrary police arrests of cross-dressers and transgender citizens.
11. JIG recommended Guyana to repeal the norm which criminalises cross-dressing, and ERT urged states involved in Guyana’s UPR to make recommendations to repeal legislative provisions criminalising cross-dressing and other forms of expressing gender identity and to amend the Prevention of Discrimination Act 1997 to include sexual orientation and gender identity as protected characteristics.
12. CHRI recommended inter alia, that the government promote and facilitate a constructive dialogue on sexual orientation and gender identity with stakeholders and introduce policies and educational programmes aimed at ending discrimination and harassment based on sexual orientation and gender identity. AI recommended, inter alia, to establish and implement policies to address discrimination based on sexual orientation or gender identity.
Right to privacy and family life
32. ERT stated that, at Guyana’s first UPR in May 2010, six States made recommendations that Guyana repeal legislative provisions which criminalise consensual same-sex sexual activity. JS1 affirmed that Guyana maintained invasive laws which criminalise consensual private sexual activity between adult men and that by retaining these laws, the rights of same-sex/gender practising persons to privacy were being violated. ERT stated that these provisions were the basis for widespread extortion and police harassment of openly gay men. ERT asserted that, as such, the continued criminalisation of same-sex sexual activity put Guyana in clear violation of its commitments under international human rights law. ERT urged States involved in Guyana’s Review to repeat recommendations to repeal, as a matter of urgency, legal provisions criminalising consensual same-sex sexual activity.
33. ERT said that, at its first UPR, Guyana said it would hold consultations on the issue of decriminalisation of these actions “over the next 2 years”. CHRI reported that, in 2012, the Parliament established a Committee to examine the possibility of decriminalising consensual adult same sex relations and promised to hold a public consultation on the subject. ERT stated no date has yet been set for the consultation and CHRI reported that at the time of writing, no Committee report on the results of any such deliberations had been made available.
Right to work and to just and favourable conditions of work
37. JS1 affirmed that LGBT people faced higher levels of unemployment, underemployment, and if employed they were paid lower wages, denied promotions and forced to perform tasks outside of their job descriptions or were not adequately paid if they worked over time. JS1 recommended amending the Prevention of Discrimination Act, to include sexual orientation and gender identity as grounds for discrimination in employment, training and recruitment.
Right to health
39. JS1 stated that LGBT persons continued to face high levels of stigma and discrimination from healthcare workers and auxiliary staff which deterred them from visiting hospitals and other health facilities, and that the incidence of HIV still remained vexingly high for vulnerable groups. It recommended the Government, inter alia, to ensure all healthcare facilities adopt policies which unequivocally prohibit discrimination in accessing healthcare.
II. Excerpts on SOGIESC issues from the national report
3. Guyana voluntarily committed to consult on 28 recommendations of the 55 Recommendations (70.1–70. 55), which were considered controversial, that is: 14 recommendations with regard to the abolition of the death penalty (70.9, 70.23–70.35); 6 with regard to the abolition of corporal punishment (70.36–70.41); 7 with regard to decriminalizing consensual same sex adult sexual relations and discrimination against LGBTs (70.47–70.53) and 70.43 (age of criminality).
9. […] The media and some NGOs including religious organizations have had their own public discourses on the abolition of corporal punishment and the decriminalization of consensual adult same sex sexual relations and discrimination against LGBTs.
LGBT Rights Recommendations 70.47, 70.48, 70.49, 70.50, 70.51, 70.52, 70.53
51. The mandate of the Parliamentary Special Select Committee (PSSC) (Para # 8) was to receive and hear submissions on the attitude of Guyanese to any changes in legislative provisions and the criminal code regarding consensual adult same sex relationships and discrimination, perceived or real, against Lesbians, Gays, Bi-Sexual and Transgender persons. Fundamentally, the PSSC’s would have had to consider whether to recommend the repeal of the S351-353 of the Criminal Offences Act (which criminalises same sex/gender intimacy between consenting adult men in private) and S 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act ( cross dressing), and, to amend S4 of the Prevention of Discrimination Act to include sexual orientation. There is nothing in Guyana’s laws prohibiting consensual female adult same sex sexual relations. Due to the prorogation of the 10th Parliament this Committee’s work has ceased.
52. During this period, there has been free and unfettered freedom of expression by NGOs including the Society Against Sexual Orientation Discrimination (SASOD), religious organizations and the media on these issues.
53. In response to SASOD’s June 15th 2014 submission to the UNHRC UPR on LGBT Rights in Guyana, Government wishes to reiterate that the State does not discriminate against persons based on their sexual orientation and that every Guyanese is entitled to their right to freedom of expression, employment, housing, medical care, education as provided for in the constitution, laws and policies of Guyana. The Government is unaware of the references made in their submission with regards to discrimination in employment. Regrettably these complaints appear to have not been brought to the attention of the Chief Labour Officer, the Public Service Commission or to the courts’ attention.
54. Any aggrieved person is free to approach the courts on a constitutional motion. To date there has been one such case in February 2010 seeking constitutional relief against the state. The Magistrate found 4 men guilty of cross-dressing in 2010. The matter was heard in the High Court before the Chief Justice who ruled in September 2013 refusing all relief sought by applicants except that he found the right of the applicants to be informed of the reason for their arrest and detention under Article 139 was infringed upon by the police (an agent of the state). The Chief Justice awarded GY $40,000 to each of the four applicants. On October 17, 2013 the applicants appealed the decision of the Chief Justice to the Court of Appeal where the matter now resides.
55. Guyana, however, acknowledges that there are interpersonal prejudices based on cultural attitudes and religious beliefs as reflected in a 2013 survey which indicated that 25% of Guyanese are homophobic.
III. Excerpts on SOGIESC issues by UN agencies
Equality and non-discrimination
19. CRC remained concerned about the prevalence of discrimination against Amerindian children and children with disabilities, as well as against other children because of their sexual orientation and/or gender identity. UNCT stated that, in line with recommendation 70.22 of the first UPR cycle on efforts to eliminate all forms of discrimination through the implementation of a national action plan, especially in the work environment, some policy measures had been implemented, such as the workplace campaign “No tolerance for discrimination”, and the “TELL” campaign, which encouraged children to disclose offences. UNCT considered the parliamentary motion on the elimination of discrimination based on sexual orientation to be a positive change that was in line with UPR recommendations 70.47–70.53 on combating discrimination against individuals on the basis of their sexual orientation or gender identity and decriminalizing consensual sexual activity between adults of the same sex.
21. UNCT recommended that Guyana, inter alia, step up its efforts regarding the removal of all forms of discrimination and enact legislation that would criminalize discrimination against persons who have a different sexual orientation or gender, prohibit all forms of discrimination and decriminalize consensual adult same-sex relations
IV. References to SOGIESC issues during the Working Group review
9. Guyana had voluntarily committed to hold consultations on 28 of the 55 recommendations. Those included recommendations on the abolition of the death penalty, on the abolition of corporal punishment, on the decriminalization of consensual same-sex adult sexual relations and on discrimination against lesbian, gay, bisexual and transgender (LGBT) persons, and on the age of criminality.
13. The Parliamentary Special Select Committee also had a mandate to receive and hear submissions on the attitude of Guyanese regarding changes in legislative provisions and the Criminal Code regarding consensual adult same-sex relationships and discrimination, perceived or real, against LGBT persons. Due to the prorogation of the tenth Parliament, the Committee’s work had ceased. The Government hoped to resubmit those matters to the National Assembly following general elections in May
14. During the reporting period, there had been unfettered freedom of expression by non-governmental organizations (NGOs), religious organizations and the media on LGBT issues. In response to an NGO submission on LGBT rights in Guyana, the Government wished to reiterate that the State did not discriminate against persons based on their sexual orientation and that every Guyanese was entitled to the fundamental rights and freedoms as provided for in the Constitution, laws and policies of Guyana.
43. Ireland […] raised concerns about the criminalization of adult same-sex relations and the rate of under-five child mortality
63. Slovenia welcomed the implementation of two of its first-cycle recommendations. It continued to call for a complete abolition of the death penalty, and expressed regret that consensual homosexual relations continued to be criminalized.
90. France asked Guyana about the results of consultations that, during its previous UPR, it had committed to hold on the rights of lesbian, gay, bisexual, transgender and intersex persons, on the state of its legislation regarding the relations between consenting adults of the same sex and on violence committed against individuals because of their sexual orientation and identity.
100. Three issues, namely, the abolition of the death penalty, the decriminalization of same-sex relations between adult males and other LGBT matters, and corporal punishment were to be considered by the Select Committee. The delegation underscored that compared to 2010, in 2014 and 2015 there had been an increase in discussions on those issues, which was a good sign. […]
117. Addressing the claim of the Netherlands that owing to that situation the debate on the follow-up of the UPR recommendations could not continue, the delegation affirmed that the Parliamentary Special Select Committee examining LGBT matters and the abolition of the death penalty and corporal punishment was still functioning and had not concluded its work at the time of prorogation. Consequently, those matters were not ready to be debated in the National Assembly. The Government hoped that those issues would be taken back to the National Assembly when it was reconvened.
V. Conclusions and/or recommendations
Guyana accepted the following recommendations:
130.25. Strengthen the protection of LGBT individuals (Brazil);
130.26. Take measures to ensure that hate crimes and discrimination based on sexual orientation or gender identity are vigorously investigated and appropriately prosecuted (United States of America);
130.27. Continue its effort in eliminating discrimination against LGBT starting with the review of its related legislation (Thailand).
Guyana noted the following recommendations:
132.29. Repeal all provisions that discriminate against persons on the basis of their sexual orientation or gender identity, particularly those which criminalise consensual adult same-sex relations (Ireland);
132.30. Decriminalise homosexuality and combat all forms of discrimination and abuse against LGBTI persons (Italy);
132.31. Bring its legislation in line with international standards by removing the relevant sections that criminalize consensual same-sex conduct from the Criminal Law (Offences) Act (Netherlands);
132.32. Repeal the laws which criminalize sexual activity between consenting adults of the same sex, as previously recommended (Slovenia);
132.33. Abrogate national laws which criminalize or discriminate against persons on the grounds of their sexual orientation or gender identity (Switzerland);
132.34. In consultation with civil society, develop and pass legislation that decriminalizes consensual same-sex sexual conduct (United States of America);
132.35. Guarantee to LGBTI persons the full enjoyment under equal conditions of their human rights, through the abolishment of the norms that criminalize and stigmatize them, and the investigation and sanction of cases of violence or discrimination motivated by sexual orientation or gender identity (Argentina);
132.36. Amend Article 149 of the Guyana Constitution to prohibit discrimination on the basis of sexual orientation and repeal Sections 351 to 353 of the Criminal Law Offences Act, which criminalizes sexual activities between consenting adults of the same sex (Canada);
132.37. Advance in the elimination of all forms of discrimination and violence based on sexual orientation or gender identity, particularly abolishing all regulations of the Penal Code that support those discriminations and reinforce legislative and judicial protections against such abuses (Chile);
132.38. Abolish discriminatory laws against LGBT persons and also amend its national legislation in order to include sexual orientation and gender identity as grounds of discrimination (Norway);
132.39. Repeal all norms that can be presumed or interpreted as being discriminatory against persons based on their sexual orientation or gender identity (Spain);
132.40. Repeal all legal provisions that discriminate against persons on the grounds of their sexual orientation or gender identity (United Kingdom of Great Britain and Northern Ireland);
132.41. Amend all legislation that discriminates against persons on the grounds of their sexual orientation or gender identity, as well as investigate incidents or acts of violence motivated by homophobia or transphobia and bring to justice those responsible for such acts (Uruguay);
132.42. Take the legislative and policy measures to prevent and fight against violence and fight against discrimination based on sexual orientation or gender identity (Colombia).
VI. Further information
You will find all documents relating to Guyana’s second review at UPR-Info and OHCHR’s websites.